Legislature(1999 - 2000)

04/30/1999 03:28 PM House L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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HB 183 - ALASKA PUBLIC UTILITIES COMMISSION                                                                                     
                                                                                                                                
Number 0090                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG announced the committee's first order of business                                                             
is HB 183, "An Act relating to the powers and duties of the chair                                                               
of the Alaska Public Utilities Commission; relating to membership                                                               
on the Alaska Public Utilities Commission; and relating to the                                                                  
annual report of the Alaska Public Utilities Commission."  The                                                                  
chairman indicated he had intended to postpone the hearing on HB
183 because two committee members who wished to propose amendments                                                              
are absent.  The chairman noted, however, he wishes to take the                                                                 
testimony of the two witnesses who have signed up, and hold the                                                                 
legislation over after that testimony.  He informed the committee                                                               
no amendments or action would be taken up on HB 183 at this                                                                     
hearing.  Chairman Rokeberg requested the testimony of Douglas                                                                  
Neeley in Glennallen.                                                                                                           
                                                                                                                                
Number 0122                                                                                                                     
                                                                                                                                
DOUGLAS NEELEY, Copper Basin Sanitation Service Company, responded                                                              
via teleconference from Glennallen.  Mr. Neeley commented he had                                                                
intended to listen to the discussion and the amendments.  He                                                                    
questioned if the committee planned to take any action at all on                                                                
this legislation today.                                                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG responded in the negative.  He noted the two                                                                  
proposed amendments are from absent members.  Representative                                                                    
Murkowski had intended to offer a "clean-up" amendment recommended                                                              
by the Department of Law.  Representative Brice had intended to                                                                 
offer an amendment to remove the qualifications of office regarding                                                             
political affiliations [for commissioners].                                                                                     
                                                                                                                                
REPRESENTATIVE HARRIS informed the chairman that Mr. Neeley's                                                                   
concern is in relation to garbage deregulation, and the chairman                                                                
might wish to explain that this legislation is not the right                                                                    
vehicle for that.  He confirmed for the chairman that Mr. Neeley's                                                              
business is Copper Basin Sanitation Service Company.                                                                            
                                                                                                                                
CHAIRMAN ROKEBERG indicated the committee had received Copper Basin                                                             
Sanitation's letter and thanked Mr. Neeley.  The chairman pointed                                                               
out that HB 183 does not speak to the refuse regulation issue.  He                                                              
informed Mr. Neeley that the committee is in receipt of the latest                                                              
version of SB 133, which had originally taken up the refuse issue                                                               
by deleting it from the APUC [Alaska Public Utilities Commission].                                                              
However, as the chairman understands it, the latest version of SB
133 excludes those provisions and maintains the status quo.  He                                                                 
asked Ms. Seitz if that is correct.                                                                                             
                                                                                                                                
Number 0272                                                                                                                     
                                                                                                                                
JANET SEITZ, Legislative Assistant to Representative Rokeberg,                                                                  
Alaska State Legislature, came forward as the aide to the House                                                                 
Labor and Commerce Standing Committee.  Ms. Seitz noted the latest                                                              
version of SB 133 the committee is in receipt of, Version K, does                                                               
contain reference to garbage-related services in the definition of                                                              
a public utility.  She stated, "It does describe furnishing,                                                                    
collection and disposal services of garbage, refuse, trash or other                                                             
waste material to the public for compensation; that is part of the                                                              
definition of a public utility contained in the latest draft of SB
133 that we have."                                                                                                              
                                                                                                                                
CHAIRMAN ROKEBERG confirmed, therefore, the commission would retain                                                             
its regulatory control.  The chairman recommended Mr. Neeley obtain                                                             
a copy of SB 133, Version K, adopted that day by the Senate Finance                                                             
Standing Committee.  Chairman Rokeberg believes SB 133 will                                                                     
ultimately be the vehicle utilized.  The chairman indicated the                                                                 
committee is using HB 183 for coordination and to develop some                                                                  
potential amendments; HB 183 may also be held as a possible back-up                                                             
bill.  He questioned if Mr. Neeley had any further comments.                                                                    
                                                                                                                                
MR. NEELEY indicated his questions had been answered and thanked                                                                
the committee.                                                                                                                  
                                                                                                                                
CHAIRMAN ROKEBERG asked Mr. Zobel in Anchorage if he had comments                                                               
or if he was present to listen and answer questions.                                                                            
                                                                                                                                
Number 0427                                                                                                                     
                                                                                                                                
RON ZOBEL, Assistant Attorney General, Fair Business Practices                                                                  
Section, Civil Division (Anchorage), Department of Law, testified                                                               
next via teleconference from Anchorage.  He is one of the two                                                                   
assistant attorney generals assigned to the APUC.  Mr. Zobel                                                                    
indicated he has a comment he had intended to make at the April 28                                                              
hearing that he thinks is now more important in retrospect.  Mr.                                                                
Zobel said, "One of the things you've done by this bill is put in                                                               
Section 10 of the committee substitute [Version I] which amends                                                                 
[AS] 42.05.171, provisions about an arbitrator."  He indicated he                                                               
thinks the intention was to allow case hearing and proposed                                                                     
decision making to be delegated to an arbitrator.  Mr. Zobel said                                                               
his comment would also apply to the delegation to hearing officers.                                                             
[Section 10 of HB 183, Version I, reads:                                                                                        
                                                                                                                                
     * Sec. 10.  AS 42.05.171 is amended to read:                                                                               
          Sec. 42.05.171.  Formal hearings.  A formal hearing                                                                   
     that the commission has power to hold may be held by or                                                                    
     before three or more commissioners, a hearing officer, or                                                                  
     an administrative law judge designated for the purpose by                                                                  
     the commission.  In appropriate cases, a formal hearing                                                                    
     may be held before an arbitrator designated for the                                                                        
     purpose by the commission.  The testimony and evidence in                                                                  
     a formal hearing may be taken by the commissioners, by                                                                     
     the hearing officer, [OR] by the administrative law                                                                        
     judge, or by the arbitrator to whom the hearing has been                                                                   
     assigned.  A commissioner who has not heard or read the                                                                    
     testimony, including the argument, may not participate in                                                                  
     making a decision of the commission.  In determining the                                                                   
     place of a hearing, the commission shall give preference                                                                   
     to holding the hearing at a place most convenient for                                                                      
     those interested in the subject of the hearing.]                                                                           
                                                                                                                                
MR. ZOBEL directed the committee's attention to the language in                                                                 
existing law in Section 10 of Version I beginning on line 29, page                                                              
4, "A commissioner who has not heard or read the testimony,                                                                     
including the argument, may not participate in making a decision of                                                             
the commission."  That provision has been interpreted by some                                                                   
commissioners to - and probably does - prevent the commission from                                                              
delegating the hearing of a case and the making of a proposed                                                                   
decision to a hearing officer or an arbitrator.  Mr. Zobel                                                                      
indicated this procedure, however, is allowed under similar                                                                     
provisions in AS 44.62.500 of the Administrative Procedure Act,                                                                 
regarding decision in a contested case.  He noted, however, the                                                                 
Administrative Procedure Act does not apply to the APUC.  [AS                                                                   
42.62.500 read:                                                                                                                 
                                                                                                                                
     Sec. 44.62.500. Decision in a contested case. (a) If a                                                                     
     contested case is heard before an agency                                                                                   
          (1) the hearing officer who presided at the hearing                                                                   
     shall be present during the consideration of the case                                                                      
     and, if requested, shall assist and advise the agency;                                                                     
     and                                                                                                                        
          (2) a member of the agency who has not heard the                                                                      
     evidence may not vote on the decision.                                                                                     
               (b) If a contested case is heard by a hearing                                                                    
     officer alone, the hearing officer shall prepare a                                                                         
     proposed decision in a form that may be adopted as the                                                                     
     decision in the case. A copy of the proposed decision                                                                      
     shall be filed by the agency as a public record with the                                                                   
     lieutenant governor and a copy of the proposed decision                                                                    
     shall be served by the agency on each party in the case                                                                    
     and the party's attorney. The agency itself may adopt the                                                                  
     proposed decision in its entirety, or may reduce the                                                                       
     proposed penalty and adopt the balance of the proposed                                                                     
     decision.                                                                                                                  
               (c) If the proposed decision is not adopted as                                                                   
     provided in (b) of this section the agency may decide the                                                                  
     case upon the record, including the transcript, with or                                                                    
     without taking additional evidence, or may refer the case                                                                  
     to the same or another hearing officer to take additional                                                                  
     evidence. If the case is so assigned the hearing officer                                                                   
     shall prepare a proposed decision as provided in (b) of                                                                    
     this section upon the additional evidence and the                                                                          
     transcript and other papers that are part of the record                                                                    
     of the earlier hearing. A copy of the proposed decision                                                                    
     shall be furnished to each party and the party's attorney                                                                  
     as prescribed by (b) of this section. The agency may not                                                                   
     decide a case provided for in this subsection without                                                                      
     giving the parties the opportunity to present either oral                                                                  
     or written argument before the agency. If additional oral                                                                  
     evidence is introduced before the agency, an agency                                                                        
     member may not vote unless that member has heard the                                                                       
     additional oral evidence.]                                                                                                 
                                                                                                                                
Number 0562                                                                                                                     
                                                                                                                                
MR. ZOBEL commented AS 44.62.500 has a section which allows                                                                     
delegation to a hearing officer to hear the matter and to submit a                                                              
proposed decision.  The agency in that instance can approve the                                                                 
decision in its entirety without reading the whole transcript or                                                                
having attended the hearing.  If the agency wants to modify the                                                                 
decision, it has to read the record or take additional evidence.                                                                
Mr. Zobel indicated he thinks the sentence he has mentioned in the                                                              
existing APUC statute, "A commissioner who has not heard or read                                                                
the testimony, including the argument, may not participate in                                                                   
making a decision of the commission.", would need to be altered                                                                 
along the lines of the language in AS 42.62.500 if it is the                                                                    
committee's intention to allow more efficiency by the commission                                                                
through delegation to hearing officers or arbitrators.  Mr. Zobel                                                               
further indicated he might be able to provide possible language                                                                 
early next week.  He noted there has been previous talk at the                                                                  
commission about delegating to hearing officers and that sentence                                                               
in the existing law is pointed to as inhibiting that; the                                                                       
commissioner either has to be there or read the whole record, which                                                             
somewhat defeats the purpose of delegation to a hearing officer or                                                              
arbitrator.  That completed Mr. Zobel's testimony.                                                                              
                                                                                                                                
Number 0659                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG said he appreciated and agreed with Mr. Zobel's                                                               
comment.  The chairman questioned if it might be possible for Mr.                                                               
Zobel to make a recommendation and even a draft amendment by the                                                                
committee's 3:15 p.m. meeting on Monday [May 3, 1999].                                                                          
                                                                                                                                
MR. ZOBEL indicated he could do so.                                                                                             
                                                                                                                                
CHAIRMAN ROKEBERG indicated he thought an accompanying summary                                                                  
explaining the situation would be very helpful, if it didn't cause                                                              
Mr. Zobel too much work.  The chairman provided the committee's fax                                                             
number.  Proceeding onward, the chairman questioned if the                                                                      
committee is working from Version I.                                                                                            
                                                                                                                                
MS. SEITZ confirmed the committee is working from Version I of HB
183 and has two pending amendments to this version.  The committee                                                              
adopted Amendment 3 to Version I [adopted 4/28/99; labeled                                                                      
1-LS0764\I.3, Cramer, 4/28/99] .  Ms. Seitz confirmed that                                                                      
Amendment 1 [offered and amended 4/28/99; labeled 1-LS0764\I.1,                                                                 
Cramer, 4/28/99] and Amendment 2 [offered 4/28/99; labeled                                                                      
1-LS0764\I.2, Cramer, 4/28/99] are both still before the committee.                                                             
                                                                                                                                
Number 0741                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO indicated the committee also still has                                                                    
Amendment 8 to Version H offered at the Monday, April 26 hearing                                                                
[stated as "Friday"].  Representative Halcro noted the committee                                                                
had been waiting on the determination of constitutionality and now                                                              
has the opinion.                                                                                                                
                                                                                                                                
CHAIRMAN ROKEBERG asked Ms. Seitz to organize materials with the                                                                
committee in preparation for the Monday hearing [May 3].  He noted                                                              
there is Amendment 1 and commented Representative Murkowski has an                                                              
amendment to Amendment 1 which can be handled then.                                                                             
                                                                                                                                
MS. SEITZ commented Amendment 1 is marked I.1.  She indicated                                                                   
Amendment 2, marked I.2, was held by the chairman on April 28.  It                                                              
is the amendment regarding rate charges.  Ms. Seitz pointed out                                                                 
there is also the corrected Amendment 8 [to Version H] from                                                                     
Representative Halcro, which was being held for the legal opinion.                                                              
She confirmed this amendment concerns the appointment of the chair                                                              
and copies of the legal opinion are being distributed to the                                                                    
committee.  Additionally there is a new amendment, from                                                                         
Representative Brice, relating to the political qualifications.                                                                 
                                                                                                                                
Number 0852                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG stated the committee should be prepared to bring                                                              
these items forward.  The chairman indicated he would like Ms.                                                                  
Seitz to discuss the legal opinion on Amendment 8 with                                                                          
Representative Halcro and Walt Wilcox [aide to the House Special                                                                
Committee on Utility Restructuring] to ensure this can be                                                                       
addressed.  Chairman Rokeberg requested Mr. Zobel's comments on                                                                 
Amendment 1.  The chairman confirmed Mr. Zobel and Representative                                                               
Murkowski had had a conversation regarding deletion of the                                                                      
amendment language, "complexity of issues, or another reason", on                                                               
line 19 of the original written amendment.  [Amendment 1, labeled                                                               
1-LS0764\I.1, Cramer, 4/28/99, as amended by the committee on                                                                   
4/28/99, read:                                                                                                                  
                                                                                                                                
     Page 1, line 5, following ";":                                                                                             
          Insert "relating to timely action by the Alaska                                                                       
     Public Utilities Commission;"                                                                                              
                                                                                                                                
     Page 3, line 26:                                                                                                           
          Delete "a new subsection"                                                                                             
          Insert "new subsections"                                                                                              
                                                                                                                                
     Page 3, lines 28 - 30:                                                                                                     
          Delete ", the chair of the commission shall promptly                                                                  
     fix a date for hearing when a hearing is appropriate.                                                                      
     The hearing shall be without undue delay.  The"                                                                            
          Insert "for which a hearing is clearly warranted,                                                                     
     the chair of the commission shall assign a priority                                                                        
     rating to the issue and promptly fix a date for hearing.                                                                   
     The hearing shall be expedited in accordance with the                                                                      
     priority rating.  Regardless of the priority rating, a"                                                                    
                                                                                                                                
     Page 4, following line 2:                                                                                                  
          Insert a new subsection to read:                                                                                      
               "(c) Unless to do so would violate the due                                                                       
          process rights of a party, the commission shall                                                                       
          ensure that its dockets are closed in a timely                                                                        
          fashion and not delayed due to inaction, complexity                                                                   
          of issues, or another reason.  Failure of a                                                                           
          commission member to comply with this subsection                                                                      
          constitutes grounds for removal from the commission                                                                   
          under AS 42.05.035.  The chair of the commission                                                                      
          may dismiss a commission employee for failure to                                                                      
          comply with this subsection."]                                                                                        
                                                                                                                                
Number 0955                                                                                                                     
                                                                                                                                
MR. ZOBEL agreed with the view Representative Murkowski had                                                                     
expressed at the previous hearing:  this language would not allow                                                               
for any reason.  The phrase "another reason" is particularly                                                                    
troublesome, it is too broad; there is no reason for delay at all.                                                              
Mr. Zobel additionally commented he thinks the phrase, "Unless to                                                               
do so would violate the due process rights of a party,", is rather                                                              
superfluous.  It is implied that the commission cannot violate due                                                              
process rights of a party.  However, he said he has not tried to                                                                
rewrite this particular section.  Mr. Zobel indicated one reason is                                                             
that these issues are in Jim Baldwin's [Assistant Attorney General,                                                             
Governmental Affairs Section, Civil Division (Juneau), Department                                                               
of Law] area of expertise.                                                                                                      
                                                                                                                                
Number 1024                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG indicated his wish had been to take Mr. Zobel's                                                               
testimony for the committee's information so less time would have                                                               
to be spent at the May 3 hearing.  The chairman repeated that                                                                   
Representative Murkowski would be offering an amendment to the                                                                  
amendment, and looking at the balance of that statement.  He                                                                    
confirmed no one else wished to testify on HB 183 and announced HB
183 would be held over for further action on Monday [May 3].                                                                    
                                                                                                                                

Document Name Date/Time Subjects